Friday, June 08, 2012

The question is, which is to be master?

Yay, fair use withut discovery!Although I’m not quite as excited as other
people because I want to think a bit more about this language: “When a
defendant raises a fair use defense claiming his or her work is a parody, a court
can often decide the merits of the claim
without discovery or a trial” (emphasis added).While the context of concern abut “copyright trolls” who impose unfair
costs on litigating defendants might serve to limit this language, I foresee
plaintiffs wanting to use it too: what if the parody isn’t the kind of thing an
audience of wealthy, largely white, largely middle-aged judges (and their clerks, on occasion) understands as
parody, but can be recognized as such by its target audience? Are we really that confident that judges will
routinely “get” transformative uses, or will they be tempted to grant summary
judgment against plaintiffs too? The key here is to recognize that Campbell makes clear that transformative uses don't have to be successful, or have a single meaning (it's hard to say that any creative work has only one meaning, which is why people can disagree on what counts as parody and what as sequel even without the impetus of a copyright lawsuit); as long as an interpretive community can reasonably perceive the parody, that ought to count as parody, even if there are also people who don't get it.

Creative Commons/disclaimer

Text on this blog is licensed under a Creative Commons Attribution 2.5 License. Pictures and works quoted may be subject to other parties' copyrights.
I speak for myself. On this blog, I do not and cannot speak for Georgetown Law, the Organization for Transformative Works and/or AO3.